Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS030315
Bamattre-Manoukian, Acting P.J.
I. INTRODUCTION
Defendant Jesus Lara Estrada pleaded guilty to willful infliction of corporal injury on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)). The trial court suspended imposition of sentence and placed defendant on probation for three years. After defendant admitted he violated probation by failing to report to probation, the trial court sentenced defendant to three years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the trial court erred by imposing two restitution fines for the same conviction and that the parole revocation restitution fine should be reduced. Defendant also contends that the trial court erred by imposing two court security fees. Lastly, defendant maintains he is entitled to one additional day of credit for time spent in actual custody.
The trial court awarded defendant two additional days of credit—one day for actual time and one day for conduct—in an amended abstract of judgment filed April 8, 2008 while the appeal was pending. And, for reasons that we will explain, we will order the abstract of judgment modified regarding the restitution and the parole revocation restitution fines.
II. BACKGROUND
As defendant was convicted by plea, the summary of his offense is taken from the probation report. On October 20, 2003, deputies were dispatched around 11:44 p.m. to a report of a domestic fight. A woman reported that defendant pulled her hair, threw her to the ground, and kicked her head. She also reported that defendant punched her head approximately ten times, tried to scratch her face, and hit her twice with a broom handle. Further, she stated that defendant poured beer on her and tore off her shirt. She indicated that prior to the attack, defendant consumed six cans of beer in a 45-minute period. Her niece, who intervened, reported being struck on the back by defendant.
Defendant was charged by complaint filed October 22, 2003, with two counts of assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); counts 1 & 2, both felonies) against one victim, and one count of battery (§ 242; count 3, a misdemeanor) against the other victim. On October 29, 2003, the complaint was amended to add a count for willful infliction of corporal injury on a spouse or cohabitant (§ 273.5, subd. (a); count 4, a felony), and defendant entered a guilty plea to this count on condition that he receive felony probation. Counts 1 through 3 were submitted for dismissal at the time of sentencing.
On December 23, 2003, the trial court suspended imposition of sentence and placed defendant on probation for three years. As a condition of probation, defendant was required to serve 180 days in county jail. The trial court also imposed various fines and fees, including a restitution fine of $200 (§ 1202.4, subd. (b)) and a court security fee of $20 (§ 1465.8, subd. (a)(1)). The clerk’s minutes of the hearing reflect that counts 1, 2, and 3 were dismissed.
Defendant failed to report to probation after being released from custody. In June 2004, a “violation of probation was filed,” and a warrant was issued for defendant’s failure to appear in court. Defendant was arrested approximately eight months later. In February 2005, probation was reinstated and defendant was ordered to serve 30 days in county jail.
In March 2005, defendant was released from custody and again failed to report to probation. On March 21, 2005, the probation officer filed a petition for modification or change of terms of probation, and a warrant was later issued for defendant’s failure to appear in court. Defendant was arrested on July 18, 2007. On August 1, 2007, defendant admitted that he violated the terms and conditions of his probation.
On August 22, 2007, the trial court sentenced defendant to the middle term of three years in state prison. The trial court stated that defendant “is going to be ordered to pay a state restitution fine in the amount of $400. Also a restitution fine in the same amount follow [sic] 1202.4 (b).”
The clerk’s minutes for the August 22, 2007 hearing reflect a state restitution fine of $600 pursuant to section 1202.4, subdivision (b), and an “additional restitution fine in [the] same amount” suspended pursuant to section 1202.45 unless parole is revoked. The clerk’s minutes also refer to a court security fee of $20 pursuant to section 1465.8, subdivision (a)(1).
Defendant filed a notice of appeal on August 22, 2007.
The abstract of judgment filed September 10, 2007, reflects a court security fee of $20 pursuant to section 1465.8. The abstract of judgment also reflects a restitution fine of $600 pursuant to section 1202.4, subdivision (b), and a parole revocation restitution fine of $600 pursuant to section 1202.45. The abstract of judgment further indicates that defendant received 174 days credit for actual time in custody and 86 days credit for conduct, for a total credit of 260 days.
An amended abstract of judgment, filed April 8, 2008 while the appeal was pending, gives defendant two additional days of credit—one day for actual time and one day for conduct—for a total credit of 262 days. The amount of the restitution fines and court security fee on the April 8, 2008 abstract remains the same as the amount on the September 10, 2007 abstract.
III. DISCUSSION
Restitution Fines
When the trial court first granted defendant probation in December 2003, it imposed a restitution fine of $200 pursuant to section 1202.4, subdivision (b). In August 2007, when the trial court sentenced defendant to prison, it also imposed a restitution fine of $400, along with another “restitution fine in the same amount . . . .” The clerk’s minutes from the August 2007 hearing, the September 10, 2007 abstract of judgment, and the April 8, 2008 amended abstract of judgment reflect a restitution fine of $600 and a parole revocation restitution fine of $600.
On appeal, defendant contends the restitution fine of $600 and the parole revocation restitution fine of $600 “were unauthorized.” He argues the $600 restitution fine should be reduced to $200—the amount imposed when he was first granted probation in December 2003. He contends the $600 parole revocation restitution fine should also be reduced to $200.
The People appropriately concede the error. The imposition of a restitution fine at the time of conviction and granting of probation survives subsequent probation revocation. (People v. Chambers (1998) 65 Cal.App.4th 819, 822-823 (Chambers); People v. Garcia (2006) 147 Cal.App.4th 913, 917.) “There is no statutory authority justifying the second restitution fine because . . . the first restitution fine remained in force despite the revocation of probation. Accordingly, since the trial court was without authority to impose the second restitution fine, it must be stricken. [Citation.]” (Chambers, supra, 65 Cal.App.4th at p. 823.) In addition, because the corresponding parole revocation restitution fine (§ 1202.45) must be in the same amount as the restitution fine, that fine must also be reduced to $200. (People v. Smith (2001) 24 Cal.4th 849, 851, 853; People v. Arata (2004) 118 Cal.App.4th 195, 203.) We will order the abstract of judgment modified to reduce the restitution and parole revocation restitution fines to $200 each.
Court Security Fee
The trial court imposed a court security fee of $20, pursuant to section 1465.8, subdivision (a)(1), when defendant was first granted probation on December 23, 2003. After defendant admitted that he was in violation of probation, the trial court, at the hearing on August 22, 2007, sentenced defendant to prison. According to the reporter’s transcript of the hearing, the trial court did not make any oral pronouncements regarding an additional court security fee. The clerk’s minutes of the August 22, 2007 hearing refer to a court security fee of $20, pursuant to section 1465.8, subdivision (a)(1).
On appeal, defendant contends that “[i]f the trial court imposed a second [court security] fee, it erred. If it merely reiterated imposition of the original fee, it did not.”
Section 1465.8, subdivision (a)(1), states: “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense . . . .” This section thus “unambiguously requires a fee to be imposed for each of defendant’s convictions.” (People v. Schoeb (2005) 132 Cal.App.4th 861, 865.)
In this case, defendant pleaded guilty to one count, and the trial court on December 23, 2003, imposed a single court security fee of $20. The trial court’s oral pronouncement on August 22, 2007, is not inconsistent, as it did not add another court security fee. To the extent the clerk’s minutes of the August 22, 2007 hearing purports to add another court security fee, the court’s oral pronouncement controls. Both the abstract of judgment filed September 10, 2007, and the later amended abstract of judgment, filed April 8, 2008, reflect only one court security fee of $20, and thus the abstracts are correct.
Defendant contends the abstract of judgment should indicate that he is required to pay only “the outstanding balance” on the restitution fine and the court security fee. We agree with the People that to the extent defendant has paid any of the restitution fine or court security fee, he is entitled to that credit and must only pay the remaining balance, and the abstract of judgment need not be modified in this regard.
Custody Credit
The abstract of judgment filed September 10, 2007, reflects that defendant received 260 days of custody credit, consisting of 174 days of actual custody and 86 days of conduct credit. According to the supplemental probation report, the credit for actual custody was based on three time periods during which defendant was in county jail: October 21, 2003 to February 18, 2004; February 14, 2005 to March 1, 2005; and July 18, 2007 to August 22, 2007. The supplemental probation report calculated actual custody time for these three time periods as 121 days, 17 days, and 36 days, respectively.
On appeal, defendant contends he is entitled to one additional day of actual custody credit for his initial period of incarceration. Defendant argues his actual custody credit should be calculated based on an arrest date of October 20, 2003, and not October 21, 2003.
After filing his reply in this appeal, defendant made the same contention in a letter to the trial court. In the letter, defendant asserted he was entitled to one additional day of actual custody credit and to one additional day of conduct credit, for a total of 262 days of custody credit.
The amended abstract of judgment, filed April 8, 2008 after briefing was completed in this case, reflects the modification requested. Thus, defendant’s contention on appeal—that the custody credit in the abstract of judgment should be corrected based on the date of his arrest—is moot.
The supplemental probation report reflects that defendant received 17 days of actual custody credit for his second period of incarceration from February 14, 2005, to March 1, 2005. This court requested supplemental briefing regarding whether defendant should have received 16 days of actual custody credit for this time period. In supplemental briefing, the People contend that defendant is entitled to 16 days, while defendant argues the date of arrest in the supplemental probation report is wrong and he is entitled to 18 days of actual custody credit. Defendant has indicated that he will address this issue to the trial court.
IV. DISPOSITION
The April 8, 2008, abstract of judgment is ordered modified to reflect that the ordered restitution (§ 1202.4) and parole revocation restitution (§ 1202.45) fines are $200 each. As so modified, the judgment is affirmed.
WE CONCUR: MIHARA, J., MCADAMS, J.